Ex parte E3 Pest Control, LLC, d/b/a E3 Termite and Pest Control, and Michael Adams PETITION FOR WRIT OF MANDAMUS (In re: Timothy Garfield and Angela Garfield v. E3 Pest Control, LLC, d/b/a E3 Termite and Pest Control) (Mobile Circuit Court: CV-23-902662).

Rel: September 27, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
SPECIAL TERM, 2024
_________________________

SC-2024-0224
_________________________

Ex parte E3 Pest Control, LLC, d/b/a E3 Termite and Pest
Control, and Michael Adams

PETITION FOR WRIT OF MANDAMUS

(In re: Timothy Garfield and Angela Garfield

v.

E3 Pest Control, LLC, d/b/a E3 Termite and Pest Control et al.)

(Mobile Circuit Court: CV-23-902662)

BRYAN, Justice.

Michael Adams and E3 Pest Control, LLC, d/b/a E3 Termite and

Pest Control ("E3"), petition this Court for a writ of mandamus directing
SC-2024-0224

the Mobile Circuit Court to transfer this action to the Baldwin Circuit

Court. For the reasons explained below, we grant the petition and issue

the writ.

Background

Timothy Garfield and Angela Garfield commenced this action in

December 2023, naming E3 and its sole member, Adams, as defendants.

The complaint also included fictitiously named defendants. In summary,

the Garfields alleged that, in 2021, they had entered into a contract with

E3 for the inspection and treatment of a residence that the Garfields had

purchased in Baldwin County to identify and prevent termite

infestations. According to the Garfields, they discovered termite damage

and a termite infestation in the residence in July 2022.

The Garfields' complaint asserted the following counts: (1)

fraudulent suppression; (2) fraudulent misrepresentation, including

promissory fraud; (3) negligence; (4) negligent and/or wanton hiring,

training, supervision and retention of employees; (5) breach of contract;

(6) wantonness; (7) unjust enrichment; (8) promissory estoppel; and (9)

equitable estoppel. The Garfields sought awards of compensatory and

punitive damages and "such other relief, including, without limitation,

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injunctive relief, declaratory relief, specific[-]performance relief, and

other forms of equitable relief, as may be just."

In January 2024, E3 and Adams ("the defendants") filed a motion

to transfer the action to the Baldwin Circuit Court, arguing that Baldwin

County was the proper venue for the action pursuant to Rule 82, Ala. R.

Civ. P., because, they said, the Garfields' residence is the "subject matter

of the action" and, alternatively, that the action should be transferred in

the interest of justice pursuant to § 6-3-21.1, Ala. Code 1975. The

Garfields opposed the motion to transfer, noting that E3's principal place

of business is located in Mobile County. See § 6-3-7(a), Ala. Code 1975

("All civil actions against corporations may be brought in any of the

following counties: … (2) In the county of the corporation's principal

office in this state …."). On March 1, 2024, the Mobile Circuit Court

entered an order denying the motion to transfer. The defendants then

filed their mandamus petition.

Standard of Review

"Mandamus is a drastic and extraordinary writ, to be
issued only where there is (1) a clear legal right in the
petitioner to the order sought; (2) an imperative duty upon the
respondent to perform, accompanied by a refusal to do so; (3)
the lack of another adequate remedy; and (4) properly invoked
jurisdiction of the court."
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Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala. 1995).

" 'A trial court's denial of a motion to transfer based on
improper venue is reviewable by a petition for writ of
mandamus, and "such a petition is due to be granted if the
petitioner makes a clear showing of error on the part of the
trial court." Ex parte Alabama Power Co., 640 So. 2d 921, 922
(Ala. 1994).' "

Ex parte Thomasville Feed & Seed, Inc., 74 So. 3d 940, 942 (Ala.

2011)(quoting Ex parte Burr & Forman, LLP, 5 So. 3d 557, 565 (Ala.

2008)).

Analysis

The defendants essentially assert three arguments in support of

their contention that this action should be transferred to Baldwin

County. For the reasons explained below, we agree that the action must

be transferred. In reaching this conclusion, however, we find it

unnecessary to address the defendants' argument predicated on the

provisions of § 6-3-21.1; therefore, we express no opinion concerning that

argument.

The first issue addressed by the mandamus petition is which venue

statute applies in an action against a limited-liability company ("LLC"):

§ 6-3-2 or § 6-3-7, Ala. Code 1975. The defendants argue that § 6-3-2

applies to actions against LLCs. See Ex parte WMS, LLC, 170 So. 3d
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645, 650 (Ala. 2014). In response, the Garfields argue that this Court

should instead adopt the rationale set forth in Justice Mitchell's special

writing in Ex parte Alabama Power Co., 369 So. 3d 662, 669-72 (Ala.

2022)(plurality opinion), wherein he determined that certain of this

Court's recent decisions had correctly indicated that § 6-3-7, instead of §

6-3-2, applies to actions against LLCs. For the reasons explained below,

we conclude that which venue statute applies in an action asserted

against an LLC is not the dispositive issue presented by this mandamus

petition. Therefore, we need not decide at this time whether the Court

should adopt the rationale set forth in Justice Mitchell's special writing

in Ex parte Alabama Power Co., and we decline to express an opinion

regarding that question in this case.

As the defendants' petition also addresses, the more significant

features of the present action are really that it has been asserted against

an individual and that the action involves real property. The defendants

cite Ex parte Travis, 573 So. 2d 281 (Ala. 1990), in support of their

position on this point. The Garfields argue that Ex parte Travis is

inapposite because that case involved a partnership and not an LLC.

However, as the Court's opinion made clear, the precise nature of the

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business entity at issue in Ex parte Travis was not the pertinent inquiry

in that case.

In Ex parte Travis, this Court explained the following regarding the

circumstances presented there: "The parties to this petition have

presented a great deal of argument concerning whether a limited

partnership should be treated as an individual or as a corporation for

venue purposes. However, for the reasons set out below, that issue is not

dispositive and will not be addressed." 573 So. 2d at 282 (emphasis

added). The Court continued:

"As stated earlier, [the] complaint named [Y.E.] Travis
as a defendant both individually and in his capacity as the
general partner of Boat Storage[, Ltd.]. The claims asserted
by [the plaintiff] included a claim seeking to enforce a
mechanic's lien, filed pursuant to Ala. Code 1975, § 35-11-212,
against the boat storage facility and the property upon which
it is situated. When the subject matter of the action is real
estate, venue for actions against resident individuals is
governed by Ala. Code 1975, § 6-3-2(b)(1)[,] and Rule
82(b)(1)(B), Ala. R. Civ. P."

Id. (emphasis added).

Section 6-3-2 provides:

"(a) In proceedings of a legal nature against individuals:

"(1) All actions for the recovery of land, of the
possession thereof, or for a trespass thereto must

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be commenced in the county where the land or a
material part thereof lies.

"(2) All actions on contracts, except as may
be otherwise provided, must be commenced in the
county in which the defendant or one of the
defendants resides if such defendant has within
the state a permanent residence.

"(3) All other personal actions, if the
defendant or one of the defendants has within the
state a permanent residence, may be commenced
in the county of such residence or in the county in
which the act or omission complained of may have
been done or may have occurred.

"(b) In proceedings of an equitable nature against
individuals:

"(1) All actions where real estate is the
subject matter of the action, whether it is the
exclusive subject matter of the action or not, must
be commenced in the county where the same or a
material portion thereof is situated.

"(2) If the action is to enjoin proceedings on
judgments in other courts, it may be commenced
in the county in which such proceedings are
pending or judgment entered.

"(3) Except as may be otherwise provided,
actions must be commenced in the county in which
the defendant or a material defendant resides.

"(4) In the case of nonresidents, actions must
be commenced in the county where the subject of
the action or any portion of the same was when the

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claim arose or the act on which the action is
founded was to be performed."

(Emphasis added.)

Rule 82(b), Ala. R. Civ. P., provides:

"(b) Venue of Actions. Venue of actions shall not be
affected by these rules except as the statute for venue for
actions against individuals at law (§ 6-3-2(a)) and the statute
for venue for actions against individuals in equity (§ 6-3-2(b))
are inconsistent. Such inconsistencies are resolved as follows:

"(1) Against Resident Individuals. Actions
against an individual or individuals having a
permanent residence in this state:

"(A) Must be brought in the
county where the defendant or any
material defendant resides at the
commencement of the action, except
that if the action is a personal action
other than an action on a contract, it
may be brought either in the county
where the act or omission complained
of occurred, or in the county of the
permanent residence of the defendant
or one of them;

"(B) Must, if the subject matter of
the action is real estate, whether or not
exclusively, or if it is for recovery or the
possession thereof or trespass thereto,
be brought in the county where the real
estate or a material portion thereof is
situated."

(Emphasis added.)
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In granting the mandamus petition at issue in that case, the Ex

parte Travis Court reasoned:

"The language of both the rule and the statute is
mandatory. A judge's failure to follow their mandate would
be an abuse of discretion. … Actions concerning real estate
must be brought in the county where the real estate, or a
material portion thereof, is located, 'whether it is the
exclusive subject matter of the action or not.' Ala. Code 1975,
§ 6-3-2(b)(1).

"Because venue for [the plaintiff]'s mechanic's lien claim
against Travis as an individual was appropriate only in
Elmore County, the trial court abused its discretion by
denying Travis and Boat Storage's motions for transfer. The
petition for writ of mandamus is therefore granted, and the
court is ordered to vacate its orders denying the motions for
transfer, and to transfer the pending lawsuit to Elmore
County."

573 So. 2d at 282-83 (final emphasis added).

In addition to naming E3 as a defendant in this action, the Garfields

have named Adams, in his individual capacity, as a defendant. Under

the rationale of Ex parte Travis, the statute and procedural rule

governing venue as to individuals -- § 6-3-2 and Rule 82(b)(1),

respectively -- apply when an action has been asserted against both an

individual and a separate business entity if the subject matter of the

action is real property. The Garfields argue that, notwithstanding their

inclusion of Adams as a defendant in their complaint, Rule 82(c) permits
9
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them to bring this action in Mobile County because, they say, venue is

proper there as to E3. Rule 82(c) provides, in relevant part: "Where

several claims or parties have been joined, the suit may be brought in

any county in which any one of the claims could properly have been

brought." However, as the defendants note, the Ex parte Travis Court

expressly considered Rule 82(c) and reasoned that it does not supersede

the provisions of § 6-3-2(b)(1) and Rule 82(b)(1)(B): "This Court is aware

of what might appear to be an inconsistency between the mandatory

language of § 6-3-2(b)(1) and Rule 82(b)(1)(B), on the one hand, and the

'liberal joinder' provision of Rule 82(c), on the other. However, both the

statute and the rule are unambiguous." 573 So. 2d at 282.

The Garfields note that Ex parte Travis was decided in 1990, and

they cite Ex parte Fontaine Trailer Co., 854 So. 2d 71 (Ala. 2003), for the

proposition that § 6-3-7, the current version of which was enacted in

1999, rendered Rule 82(c) applicable to domestic corporations, which is a

category to which the Garfields contend E3 belongs. Although this Court

did discuss the general applicability of Rule 82(c) to domestic

corporations in Ex parte Fontaine Trailer Co., the issues presented by

that case did not require any consideration of the mandatory language of

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Rule 82(b)(1)(B) and § 6-3-2(b)(1), which dictate the venue for actions

asserted against individuals when the subject matter of the action is real

estate, whether exclusively or not. Moreover, in addressing the actual

issue presented in Ex parte Fontaine Trailer Co., which involved the

applicability of Rule 82(c) to foreign corporations, the Court expressly

noted that Rule 82(c) had not worked a substantive change on venue law,

reasoning: "Rule 82(c) does not 'affect the ... venue of actions,' … but

rather, at the time of its promulgation in 1973, … simply stated the

existing rule of practice." 854 So. 2d at 85 (quoting § 6.11 of Amendment

No. 328 to the Alabama Constitution of 1901, which is now found at

Article VI, § 150, of the Alabama Constitution of 2022).

Thus, the fact that Rule 82(c) is generally applicable to domestic

corporations does not mean that the pendent venue principles provided

by that subsection also supersede or override the mandatory language of

Rule 82(b)(1)(B) and § 6-3-2(b)(1). Therefore, even assuming, without

deciding, that E3 should be treated as a domestic corporation for venue

purposes, the inclusion of Adams as a defendant means that this action

must be transferred to Baldwin County -- where the Garfields' residence

is located -- if the "subject matter" of the action is the residence within

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the meaning of § 6-3-2(b)(1) and Rule 82(b)(1)(B). See Ex parte Cannon,

508 So. 2d 222, 225 (Ala. 1987)(considering a complaint asserted against

a number of individuals and corporations and reasoning: "The language

of § 6-3-7 … does not permit venue to be established in one county when

the lawsuit's subject matter is real estate located, or substantially

located, in another county …. The venue of such a proceeding is governed

by § 6-3-2(b)(1)."). Consequently, we must resolve that issue first, and,

for the reasons explained below, we conclude that doing so disposes of

this petition. The Court recently addressed a similar inquiry in Ex parte

Mullen, [Ms. SC-2023-0278, Jan. 12, 2024] ____ So. 3d ____ (Ala. 2024).

Ex parte Mullen involved an action asserting claims of breach of

contract, breach of the implied warranty of habitability, fraud,

negligence, and fraudulent suppression stemming from the sale of an

allegedly defective residence by Richard Mullen and Cheryl Mullen to

Karl Leo and Fay Leo. In considering whether the county where the

residence was located was the proper venue for the action, we noted that

"Rule 82(b)(1)(B) was intended to incorporate the pertinent provisions of

the predecessor statutes to § 6-3-2(a) and § 6-3-2(b) to provide a uniform

12
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rule to govern venue for 'specific actions involving land.' " ____ So. 3d at

____. Moreover,

"[u]nder the clear language of Rule 82(b)(1)(B),
application of that rule does not depend on whether the action
at issue involves legal or equitable claims. Instead, venue is
dictated by Rule 82(b)(1)(B) 'if the subject matter of the action
is real estate, whether or not exclusively, or if it is for recovery
or the possession thereof or trespass thereto.' "

Id. at ____.

Like the complaint at issue in Ex parte Mullen, the Garfields'

complaint in this case "does not involve a request for recovery or

possession of the property, nor does the action involve trespass to the

property. Thus, the remaining question is whether 'the subject matter of

the action is real estate, whether or not exclusively.' See [Rule

82(b)(1)(B)]." ____ So. 3d at ____.

In ascertaining the meaning of the phrase "subject matter," we

further reasoned as follows in Ex parte Mullen:

"[T]he pertinent language of Rule 82(b)(1)(B) is derived from
the predecessor statutes to § 6-3-2. The phrase 'subject
matter' first appeared in one such statute in § 3760 of the
Alabama Code of 1876. This Court has explained that
' "[w]ords used in a statute must be given their natural, plain,
ordinary, and commonly understood meaning, and where
plain language is used a court is bound to interpret that
language to mean exactly what it says." ' Blue Cross & Blue
Shield of Alabama, Inc. v. Nielsen, 714 So. 2d 293, 296 (Ala.
13
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1998)(quoting IMED Corp. v. Systems Eng'g Assocs. Corp.,
602 So. 2d 344, 346 (Ala. 1992)).

"The first edition of Black's Law Dictionary was
published in 1891. At that time, Black's Law Dictionary
defined 'subject matter' as: 'The thing in controversy, or the
matter spoken or written about.' Black's Law Dictionary 1130
(1st ed. 1891). At the time Rule 82(b)(1)(B) was adopted in
1973, Black's Law Dictionary defined 'subject matter' as: 'The
subject, or matter presented for consideration; the thing in
dispute; the right which one party claims as against another
.... Nature of cause of action, and of relief sought.' Black's Law
Dictionary 1594 (Rev. 4th ed. 1968). The current edition of
Black's Law Dictionary defines 'subject matter' as: 'The issue
presented for consideration; the thing in which a right or duty
has been asserted; the thing in dispute.' Black's Law
Dictionary 1723 (11th ed. 2019)."

____ So. 3d at ____.

In relevant part, we applied the plain meaning of the phrase

"subject matter" as follows:

"[T]he gravamen of the Leos' complaint is that the Mullens
improperly designed and constructed the residence located on
the property and sold it to the Leos in an uninhabitable
condition by making false advertisements and
representations concerning the condition of the residence. …

"In particular, we note that the Leos averred that the
Mullens 'had a duty to exercise reasonable care by properly
designing and constructing the [Leos]' home in a good and
workmanlike manner free from defects. [The Mullens]
breached their duty to exercise reasonable care by
[im]properly designing and constructing the [Leos]' home.'
The Leos also averred that, '[i]n entering into the contract for
the purchase of the [p]roperty, [the Mullens] made certain
14
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materially false representations to the [Leos], including but
not limited to advertisements and representations that the
home was new as well as representations that the home was
free from known and latent defects.'

"Thus, '[t]he thing[s] in controversy' in this case are the
condition of the residence located on the property and the
Mullens' representations regarding that condition. See
Black's Law Dictionary 1130 (1st ed. 1891). Moreover, the
condition of the residence and the Mullens' related conduct
are the 'matter[s] presented for consideration [and] the
thing[s] in dispute.' See Black's Law Dictionary 1594 (Rev.
4th ed. 1968). The rights asserted by the Leos against the
Mullens are reasonable care in the design and construction of
the residence and true representations concerning the
condition of the residence. See id. Correspondingly, the
residence is 'the thing in which a ... duty has been asserted,'
considering that the Leos averred that the Mullens had 'a
duty to exercise reasonable care by properly designing and
constructing the [Leos]' home in a good and workmanlike
manner free from defects.' See Black's Law Dictionary 1723
(11th ed. 2019). Therefore, we conclude that, in also
considering the historical plain meaning of the phrase 'subject
matter,' as used in the context of Rule 82(b)(1)(B), the
property is the subject matter of the Leos' action against the
Mullens."

____ So. 3d at ____.

In this case, the Garfields argue that their residence is not the

"subject matter" of their action within the meaning of Rule 82(b)(1)(B)

because, they say, the "gravamen" of their complaint is fraud. Answer

at 21. They also note that a breach-of-contract claim is generally

regarded as a transitory action. See Ex parte Mullen, ____ So. 3d at ____
15
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n.1 (" 'At common law a defendant could be sued in a transitory action

anywhere he could be served ....' Ex parte City of Birmingham, 507 So.

2d 471, 473 (Ala. 1987)."). Citing Cadence Bank, N.A. v. Robertson, 335

So. 3d 1142, 1145 (Ala. 2021), the Garfields argue that they are the

"masters of their complaint [and] are 'entitled to choose the theory of

liability on which [they] will rely.' " Answer at 22. We agree that the

Garfields are the masters of their complaint. In examining their chosen

theories of liability, however, we cannot agree that their residence is not

the subject matter of at least some of those theories.

Even assuming, without deciding, that their residence is not the

subject matter of the Garfields' breach-of-contract and fraud-based

counts, their complaint also asserts six other counts that they do not

address in their answer. Regarding their negligence claim, the Garfields

alleged that

"the [d]efendants had an independent duty at common law as
a regulated licensee of the [Alabama Department of
Agriculture and Industries] to fully provide all necessary
termite prevention and control services for the [Garfields]'
[h]ome in order to protect it against termite infestation and
damage and to do so in a reasonable and workmanlike
manner."

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(Emphasis added.) The Garfields further alleged that Adams "owed

independent duties to the [the Garfields] to ensure that the work

performed at their [h]ome by employees operating under his license met

the minimum standards set forth by the [Alabama Department of

Agriculture and Industries'] rules and regulations." (Emphasis added.)

The Garfields' wantonness and "negligent and/or wanton hiring, training,

supervision & retention of employees" claims also rely on these same or

similar allegations. Of course, the Garfields' complaint further alleges

that the defendants breached these duties and proximately caused

resulting damage to their residence, contending: "[T]he [h]ome will

require substantial repairs, including the potential that the home may

need to be rebuilt."

Thus, at least insofar as these three claims are concerned,

" '[t]he thing[] in controversy' … [is] the condition of the
residence located on the property …. See Black's Law
Dictionary 1130 (1st ed. 1891). Moreover, the condition of the
residence and the [the defendants]' related conduct are the
'matter[s] presented for consideration [and] the thing[s] in
dispute.' See Black's Law Dictionary 1594 (Rev. 4th ed. 1968).
The rights asserted by the [Garfields] against the
[defendants] are reasonable care in the [inspection and
treatment] of the residence …. See id. Correspondingly, the
residence is 'the thing in which a ... duty has been asserted,'
considering that the [Garfields alleged] that the [defendants]
had 'a duty to [protect it against termite infestation and
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damage and to do so in a reasonable and workmanlike
manner].' See Black's Law Dictionary 1723 (11th ed. 2019)."

Ex parte Mullen, ____ So. 3d at ____.

Therefore, we conclude that, in considering the historical plain

meaning of the phrase "subject matter," as used in the context of Rule

82(b)(1)(B), the Garfields' real property is the subject matter of at least

three of the Garfields' claims. Furthermore, in light of the mandatory

language of Rule 82(b)(1)(B), venue for this action is proper only in

Baldwin County, where the Garfields' residence is located, even

assuming, without deciding, that Mobile County would be a proper venue

for some of their other claims, had those claims been asserted alone. See

Ex parte Mullen, ____ So. 3d at ____ (" 'Actions concerning real estate

must be brought in the county where the real estate, or a material portion

thereof, is located, "whether it is the exclusive subject matter of the action

or not." ' " (quoting Ex parte Travis, 573 So. 2d at 282, quoting in turn §

6-3-2(b)(1))).

The cases that the Garfields cite in support of their position are

materially distinguishable. In Alabama Youth Services Board v. Ellis,

350 So. 2d 405, 408 (Ala. 1977), the Court stated: "The allegation that

one of the parties owns real estate, or has substantial rights in real estate
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which are dependent upon the settlement of the controversy, is not

enough to make real estate the 'subject matter' of the suit." The case that

the Ellis Court cited for the quoted proposition was Clark v. Sanders, 267

Ala. 674, 676, 103 So. 3d 370, 371 (1958), which was a case in which the

Court determined that the bill at issue was "simply one to determine the

marital status of the parties." The Clark Court reasoned: "No other relief

was sought and in our opinion the real estate which [the alleged common-

law husband] was alleged to own is not in any way directly involved." 267

Ala. at 676, 103 So. 2d at 372. Clearly, the present action does not involve

a determination of the parties' marital status, and the Garfields' real

property is directly involved here.

In Ellis, various public officials, a number of private citizens, and a

legal guardian of a student sued the Alabama Youth Services Board ("the

Board") seeking to prevent the closure of and to secure funding for a

particular boys' school ("the school"). Among the relief requested was an

order requiring the Board to convey the real property on which the school

was situated to a bank to hold the property as trustee. Although the

school was located in Jefferson County, the Ellis Court determined, for

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several reasons, that venue for that case was proper only in Montgomery

County.

First, the Ellis Court reasoned that venue was proper in

Montgomery County because the action was one against a state agency

whose "official residence" was located there; the Court stated: "[T]he

allegations in this case pertaining to the location of real estate in

Jefferson County, while they may resolve a venue question in an ordinary

case, do not control a case such as this where the action is one against a

state agency." 350 So. 2d at 408. The Ellis Court also determined that

the subject matter of the action was not truly the real property on which

the school was located, stating: "The nature of this action and of the relief

sought was a declaratory judgment, seeking a judicial construction of [a

statute], and for a court order establishing a financial floor on the

operation of the [school] because of an alleged statutory mandate." Id.

The Ellis Court further determined that the school was not a

"material defendant," reasoning: "There is nothing alleged in this

complaint which is antagonistic to the interest of [the school]; indeed, the

contrary is true. The gist of the entire suit is to sustain the operation of

[the school] against a reduction of its financial resources by the [Board]."

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Id. The Court reached a similar conclusion regarding the bank: "At most

the Bank was only a proper party as a corporate trustee. Such a party

cannot control venue where, as here, it has no interest in the principal

matter in controversy." Id. at 409

In contrast to the action at issue in Ellis, the Garfields' action has

not been asserted against a state agency and is not a declaratory-

judgment action seeking judicial construction of a statute allegedly

mandating a financial floor for the operation of a public entity. Moreover,

the allegations of the Garfields' complaint against Adams, whose

inclusion as a defendant in his individual capacity renders Rule

82(b)(1)(B) applicable to the present action, are clearly antagonistic to

Adams. Therefore, we conclude that the rationale and holding of Ellis

are inapplicable to the present action.

In another case that the Garfields cite, Ex parte Diamond, 596 So.

2d 423, 425 (Ala. 1992), "the complaint did not involve land; the relief

sought was monetary compensation arising from a note executed by [a]

partnership in which each partner was a one-third owner." The Court

reasoned that the subject matter of the action at issue was not real estate

because the action was one based on contract and that "[a]n

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interpretation of the note and of the partnership agreement w[ould]

determine [the defendant]'s liability." Id.

By contrast, and as explained above, the Garfields' complaint does

not assert only contractual rights, because at least three of the Garfields'

claims are based on alleged duties that they contend were imposed upon

the defendants' work in and on the Garfields' residence by the common

law and by Alabama's positive law, alleged breaches of those duties, and

resulting damage, which they further allege may require a rebuilding of

the residence. As also already noted,

"even assuming, without deciding, that [Mobile] County
would be a proper venue for the [Garfields]' breach-of-contract
claim if that claim were asserted alone, the inclusion of that
claim within the [Garfields]' complaint does not affect the
requirement of Rule 82(b)(1)(B) that this action be brought in
the [Baldwin] Circuit Court."

Ex parte Mullen, ____ So. 3d at ____.

Conclusion

The defendants have demonstrated that the residence located on

the Garfields' real property in Baldwin County is the "subject matter" of

this action within the meaning of Rule 82(b)(1)(B). Consequently, the

Mobile Circuit Court clearly exceeded its discretion by denying the

defendants' motion to transfer this action to the Baldwin Circuit Court.
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Therefore, the defendants' petition for the writ of mandamus is granted,

and the Mobile Circuit Court is hereby directed to vacate its order

denying the defendants' motion to transfer the action and to enter an

order transferring the action to the Baldwin Circuit Court.

PETITION GRANTED; WRIT ISSUED.

Parker, C.J., and Wise, Mendheim, Stewart, Mitchell, and Cook,

JJ., concur.

Shaw and Sellers, JJ., concur in the result.

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